Meeting the Challenge: Efficiency and Flexibility in ... - WilmerHale

The International Comparative Legal Guide to:
International Arbitration 2011
A practical cross-border insight
into international arbitration work
Published by Global Legal Group, in association with CDR,
with contributions from:
Abreu Advogados
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Clayton Utz
Clifford Chance CIS Limited
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De Brauw Blackstone Westbroek
DLA Piper
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Frank Advokatbyrå AB
FTI Consulting
GESSEL Attorneys at law
Habib Al Mulla & Co
Hogan Lovells Lee & Lee
Homburger
JAMS
Jiménez Cruz Peña
K&L Gates LLP
Kachwaha & Partners
Karanovic & Nikolic
Konrad & Justich
Macleod Dixon
Matheson Ormsby Prentice
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Oscós Abogados
PUNUKA Attorneys & Solicitors
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Shalakany Law Office
Sherby & Co., Advs.
Sidley Austin LLP
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SKRINE
Tilleke & Gibbins
Tonucci & Partners
Vouga & Olmedo Abogados
Werksmans Attorneys
Wilmer Cutler Pickering Hale and Dorr LLP

The International Comparative Legal Guide to: International Arbitration 2011
Preface:
1 Preface by Gary Born, Head of International Arbitration Group, Wilmer Cutler Pickering Hale and Dorr LLP
General Chapters:
Contributing Editors
Steven Finizio and
Wendy Miles, Wilmer
Cutler Pickering Hale and
Dorr LLP
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Levy, Florjan Osmani,
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Toni Wyatt
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ISBN 978-1-908070-04-3
ISSN 1741-4970
1 Meeting the Challenge: Efficiency and Flexibility in International Commercial Arbitration -
Kate Davies, Wilmer Cutler Pickering Hale and Dorr LLP 1
2 The Search for Cost Effective and Efficient International Commercial Arbitration: There is a Solution -
Richard Chernick & Robert B. Davidson, JAMS 8
3 Participation of Third Parties in International Arbitration: Thinking Outside the Box -
Marc S. Palay & Tanya Landon, Sidley Austin LLP 14
4 The Recent Global Economic Environment: Impact on Damages and Valuation in International
Arbitration - Sharon Moore & Greig Taylor, FTI Consulting 19
Asia Pacific:
5 Overview Dr. Colin Ong Legal Services: Dr. Colin Ong 25
6 Australia Clayton Utz: Doug Jones & Björn Gehle 33
7 Brunei Dr. Colin Ong Legal Services: Dr. Colin Ong 43
8 China Boss & Young: Xu Guojian & Mingjie Zhang 51
9 Hong Kong Clayton Utz in association with Haley & Co: Glenn Haley & Patrick Daley 61
10 India Kachwaha & Partners: Sumeet Kachwaha & Dharmendra Rautray 73
11 Indonesia Soewito Suhardiman Eddymurthy Kardono (SSEK): Michael Carl & Dewi Savitri Reni 82
12 Japan Anderson Mori & Tomotsune: Yoshimasa Furuta & Kiyoko Yagami 95
13 Malaysia SKRINE: Ashok Kumar Mahadev Ranai & Lubna Sheikh Ghazali 103
14 Pakistan Ebrahim Hosain: Zahid F. Ebrahim & Shabnam Noorali 114
15 Singapore Hogan Lovells Lee & Lee: Paul Teo & Jonathan Leach 122
16 Vietnam Tilleke & Gibbins: Michael Lee & Doan Ngoc Tran 130
Central and Eastern Europe:
17 Albania Tonucci & Partners: Neritan Kallfa & Majlinda Sulstarova 138
18 Estonia Aivar Pilv Law Office: Pirkka-Marja Põldvere & Ilmar-Erik Aavakivi 146
19 Hungary CMS Cameron McKenna: Dr Zsolt Okányi LL.M. (Yale) & Dr Gergely László 153
20 Lithuania Motieka & Audzevicius: Ramūnas Audzevičius & Mantas Juozaitis 162
21 Macedonia Karanovic & Nikolic: Veton Qoku 170
22 Poland GESSEL Attorneys at law: Dr. Beata Gessel-Kalinowska vel Kalisz &
Małgorzata Badowska 177
23 Romania CMS Cameron McKenna: Gabriel Sidere & Florin Dutu 185
24 Russia Clifford Chance CIS Limited: Timur Aitkulov & Roman Khodykin 194
Western Europe:
25 Overview Bredin Prat: Tim Portwood 205
26 Austria Konrad & Justich: Christian W. Konrad & Philipp A. Peters 209
27 Belgium DLA Piper: Caroline Verbruggen & Jean-Michel Detry 217
28 England & Wales Wilmer Cutler Pickering Hale and Dorr LLP: Wendy Miles & Kate Davies 226
29 France Bredin Prat: Tim Portwood 241
30 Germany DLA Piper: Dr. Frank Roth & Dr. Daniel H. Sharma 250
31 Ireland Matheson Ormsby Prentice: Nicola Dunleavy & Gearóid Carey 258
32 Liechtenstein Ritter + Wohlwend Rechtsanwälte AG: Dr.iur. Ursula Wachter
& Mag.iur. Samuel P. Ritter 267
Continued Overleaf
Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
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The International Comparative Legal Guide to: International Arbitration 2011
33 Luxembourg Elvinger, Hoss & Prussen: Yves Prussen & Marc Elvinger 274
34 Netherlands De Brauw Blackstone Westbroek: Eelco Meerdink & Edward van Geuns 283
35 Portugal Abreu Advogados: José Maria Corrêa de Sampaio & Pedro Sousa Uva 291
36 Spain Cuatrecasas, Gonçalves Pereira: Cristian Conejero Roos & Iñigo Quintana Aguirre 302
37 Sweden Frank Advokatbyrå AB: Hans Bagner & Kristoffer Persson 310
38 Switzerland Homburger: Felix Dasser & Balz Gross 318
Latin America:
39 Overview DLA Piper: Pedro J. Martinez-Fraga & Harout Jack Samra 327
40 Dominican Republic Jiménez Cruz Peña: Marcos Peña Rodríguez & Laura Medina Acosta 333
41 Mexico Oscós Abogados: Dario U. Oscos C & Dario A. Oscos R 341
42 Paraguay Vouga & Olmedo Abogados: Rodolfo Vouga Müller & Rodolfo G. Vouga Zuccolillo 350
43 Venezuela Macleod Dixon: Ramón J. Alvins Santi & Pedro J. Saghy C. 357
Middle East / Africa:
44 Overview Habib Al Mulla & Co.: Gordon Blanke & Soraya Corm-Bakhos 368
45 Egypt Shalakany Law Office: Khaled El Shalakany 372
46 Israel Sherby & Co., Advs.: Eric S. Sherby & Sami Sabzerou 380
47 Nigeria PUNUKA Attorneys & Solicitors: Anthony Idigbe & Omone Tiku 389
48 South Africa Werksmans Attorneys: Des Williams 403
49 UAE Habib Al Mulla & Co.: Gordon Blanke & Karim Nassif 413
North America:
50 Canada Borden Ladner Gervais LLP: Daniel Urbas & Robert J.C. Deane 422
51 USA K&L Gates LLP: Peter J. Kalis & Roberta D. Anderson 430

Chapter 1
Meeting the Challenge:
Efficiency and Flexibility in
International Commercial
Arbitration
Wilmer Cutler Pickering Hale and Dorr LLP
Kate Davies
1. The popularity of international arbitration continues to grow
and it is, according to the 2010 International Arbitration
Survey (“Survey”), 1 the dispute resolution mechanism of
choice for many corporations, a substantial number of whom
are reported to take a strict approach to their preference for
arbitration over state Court litigation. Of the many choices
that drive arbitration, the most important were, according to
the Survey, the seat of the arbitration, the substantive law and
the institutional rules.
2. The importance of last year’s Survey lies not just in the
choices it reveals as being the driving forces behind the
increasing use and popularity of international arbitration. It
also highlights some of the pitfalls and drawbacks from
which arbitration is nonetheless increasingly said to suffer.
In this regard, the Survey reports that corporate interviewees
“feel that arbitration must become more streamlined and
disciplined to provide an entirely effective form of dispute
resolution” and that they “prefer pro-active arbitrators who
take control of proceedings.” 2
3. This sentiment is reflected in other studies carried out of
corporate users of international arbitration. In particular, the
results of an informal survey of members of the Corporate
Counsel International Arbitration Group in 2010 reveals
similarly disquieting views. 3 The results show unanimous
support for the proposition that arbitration takes too long and
costs too much and that the lack of availability of arbitrators
is a significant factor causing unnecessary delays.
Furthermore, the overwhelming majority blamed the tribunal
for failure to enforce the agreed timetable and felt that
arbitrators prioritised procedure over efficiency.
4. The message that arbitration needs to adapt into a more
efficient process with arbitrators prepared to take the lead in
controlling time and costs is hardly new. Nor are attempts by
arbitral institutions to address those concerns; it is now
nearly four years since the publication of the ICC’s
‘Techniques for Controlling Time and Costs in Arbitration’,
which were designed to ensure that “the duration and cost of
the arbitration are commensurate with what is at stake in the
case and appropriate in light of the claims and issues
presented.” 4 However, it is a message that continues to
dominate arbitral debate and it is one to which practitioners
and institutions alike continue to seek a solution.
5. A full discussion of the many, sometimes quite subtle aspects
to this debate are well beyond the scope of this article.
However, one recent initiative designed to address this issue
has been the updating of the rules of many of the world’s
leading arbitral institutions. In this regard, the last year has
seen amended (or the ongoing process of amendment of) the
rules of the Stockholm Chamber of Commerce (“SCC”),
UNCITRAL, the Singapore International Arbitration Centre
(“SIAC”) and the ICC (in addition to the IBA’s updated
Rules on the Taking of Evidence). Many of the changes have
as their origin and purpose the need to address the very real
concerns expressed by users (and, for that matter,
institutions, practitioners and tribunals) that arbitration has
become an overly cumbersome, timely and costly process.
6. This article reviews these recent rule changes to highlight
some of the steps being taken in the quest for efficiency and
to ask whether they are meeting their stated aims. This
article also considers these rule changes in the context of
other, perhaps more simple, measures that can be used to
combat efficiency.
A. What do we mean by efficiency
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7. It is perhaps axiomatic that a complex dispute involving
detailed issues of fact and law across multiple jurisdictions
and involving several parties will be a lengthy and costly
venture for all concerned, whether in litigation or arbitration.
One of the traditional hallmarks of arbitration, however, has
been the ability to render even the most complex dispute
subject to a procedure that is streamlined and tailored to the
particular issues – and parties – in the dispute; arbitral rules
provide the framework but rarely, if ever, the detailed
procedures for the conduct of any one arbitration.
8. Increasingly, however, there is a perception that arbitration is
as structured and pre-ordained as the Court litigation
procedures it has so long fought to avoid. This is particularly
true at the evidentiary stage of proceedings, where parties
complain that disclosure/discovery exercises more and more
seem to mirror (or even go beyond) their Court equivalents.
Add to this endless rounds of written pleadings and witness
statements and it is perhaps no wonder that procedural
efficiency is sometimes seen to be lacking.
9. The protraction of arbitration proceedings is driven by many
factors and not just tribunals unable or unwilling to control
the process; dilatory, guerrilla tactics of the parties
themselves, delay in the issue of awards and so on, all feature
high on the list. The question is, how does arbitration and the
institutions and practitioners who serve its purpose, best
address the issue.
B. How do recent rule changes address concerns about
efficiency
10. One response emerges from the changes to the various
institutional rules introduced during the course of 2010. In
July 2010, SIAC published the fourth edition of its rules with
the stated aim of addressing efficiency and reducing delay in
the arbitral process. 5 The new rules include provisions for an
expedited procedure (Rule 5) and for the appointment of an
emergency arbitrator to grant interim relief before the
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Wilmer Cutler Pickering Hale and Dorr LLP
Meeting the Challenge
tribunal has been constituted (Rule 26 and Schedule 1). 6 In
the same vein, the SCC adopted an emergency arbitrator
procedure in its January 2010 rule revision and published its
Rules for Expedited Arbitrations for use in “minor disputes
regarding less complex issues and involving a smaller
amount in dispute”. 7
11. The same aim is evident in at least some of the revisions
introduced in the UNCITRAL Rules (effective as of July
2010), which include revised procedures for the replacement
of an arbitrator, the requirement for reasonableness of costs
and a review mechanism regarding the costs of the
arbitrators. These are in addition to the new and more
detailed provisions regarding the grant and availability of
interim measures (Article 17) which themselves have the
potential to promote efficiency (either by encouraging early
settlement, by disposing of issues entirely at an interim stage
of proceedings or otherwise).
12. Similarly, the revised IBA Rules on the Taking of Evidence
in International Arbitration (adopted in May 2010) provide
for a more prescriptive approach to the evidence gathering
process and include, for the first time, a “good faith”
requirement for parties conducting disclosure in arbitration.
These changes have also been introduced in an effort to
promote efficiency and reduce unnecessary costs.
13. The following sections outline some of these new procedures
in a bid to determine whether or not they are - or are capable
of - achieving enhanced efficiency.
1. Fast Track/Expedited Arbitration
14. As with attempts to meet the concerns about costs and
efficiency in general, the procedure for fast track arbitration
is not new and is already a feature of the rules of the AAA
(Rule R-1(b) and Part E), WIPO (which has its own
Expedited Rules), Japan Commercial Arbitration Association
(Article 59), Swiss Chamber of Commerce (“Swiss Rules”)
(Article 42), Hong Kong International Arbitration Centre
(“HKIAC”) (Article 38) and CIETAC (Articles 50-58). With
the exception of the WIPO Expedited Rules (which apply
only by agreement), the common feature of all of these
provisions is that they apply automatically where the amount
in dispute is below a certain threshold and unless otherwise
agreed by the parties. The LCIA Rules contain equivalent
provisions (Article 9), allowing for the expedited formation
of tribunals in cases of exceptional urgency on the
application of a party. Similarly, Article 32 of the ICC Rules
(which allows parties to agree to the shortening of time limits
in general) has long been considered capable of adaption to
fast-track procedures where necessary.
15. It could be argued that all CIETAC arbitrations are fast-track.
While six months from the date of constitution of the tribunal
is the standard time for conclusion of most fast track awards,
it is the standard under the CIETAC rules for all awards (this
in part reflects culture, since oral hearings in CIETAC
arbitration are by no means conducted as a matter of
course). 8 Notwithstanding, Chapter IV of the CIETAC Rules
contains detailed provisions allowing for a further Summary
Procedure for claims which do not exceed an amount in
dispute of RMB 500,000 yuan. An award under this
Summary Procedure must be published within just 3 months
from the date of formation of the tribunal (Article 56(1)). It
remains no small wonder, however, that in 2010 alone,
CIETAC managed to conduct in excess of one thousand
arbitrations.
16. The new UNCITRAL Rules 2010 now include a provision
which permits tribunals “at any time, after inviting the
parties to express their views, [to] extend or abridge any
period of time prescribed under these Rules or agreed by the
parties” (Article 17(2)). The distinguishing feature of this
new provision is that the tribunal may act of its own volition.
Under the equivalent procedure in the ICC Rules (Article
32), time periods may be shortened only by agreement of the
parties (with the Court retaining power to extend those limits
where necessary to “save” the expedited proceedings).
17. The SIAC has followed the lead of the more prescriptive of
the existing rules. However, the distinguishing feature of the
SIAC expedited procedure is that it is not automatic by
reference just to the amount in dispute and applies only on
the application of a party. Thus, under the new SIAC Rule 5,
any party may, prior to the full constitution of the tribunal,
apply to SIAC for the arbitral proceedings to be conducted in
accordance with the expedited procedure. A party may do so
where (a) the total value in dispute does not exceed S$5
million, (b) the parties agree, or (c) in cases of exceptional
urgency. 9 A number of consequences follow if the Chairman
determines that the proceedings shall be conducted in
accordance with the Expedited Procedure. These include the
requirement that the case be referred to a sole arbitrator, 10
that the procedure may include shortened time limits, 11 and
that the award be made within six months from the date when
the tribunal was constituted. 12
18. Whether under this or any other expedited procedure, the
ability to fast track an arbitration is not just for parties with
sophisticated counsel and a committed tribunal all dedicated
to the speedy and efficient resolution of a particular kind of
dispute; for example, where it is necessary to permit an
ongoing business arrangement to proceed unfettered (as in
construction projects where cash constraints are paramount)
or where urgent issues of statehood/public policy/
international relations are concerned (as in the Abyei
arbitration). It is also not just for the resolution of small
claims.
19. The “exceptional urgency” requirement is a feature unique to
the SIAC and LCIA expedited procedures and it can and
should be seen as a potentially useful weapon against the
recalcitrant respondent. This is so, particularly as the
Chairman (SIAC) and Court (LCIA) have the power to apply
the fast track procedure even where opposed by one of the
parties.
2. Emergency Arbitrator Procedures
20. As discussed above, the LCIA Rules (Article 9) already
permit the expedited formation of a tribunal on or after the
filing of a Request for Arbitration in cases of “exceptional
urgency”. The ICC introduced its “Pre-Arbitral Referee”
procedure as long ago as 1990 and the ICDR Rules have
contained an emergency arbitrator procedure since May
2006. 13 The SCC Rules now also include a procedure for the
appointment of an emergency arbitrator since January 2010
(Article 32(4) and Appendix II). In July 2010, the SIAC
Rules followed suit and introduced a new mechanism for
parties to obtain “emergency interim relief” prior to the
constitution of the tribunal (Article 26(2) and Schedule 1).
21. The expedited formation procedure under the LCIA Rules
and the appointment of an emergency arbitrator under the
SIAC and SCC rules applies automatically once parties
select those rules. This is distinct from the present ICC
procedure, which is contained in a separate set of rules and
applies only when those Rules specifically are chosen by the
parties (whether in addition to the main ICC Rules or not).
However, it is understood that the new Rules due to be
published later this year will bring the ICC in line with the
ICDR, SIAC and SCC by adopting its own emergency
arbitrator procedure.
22. The SIAC and SCC Rules contain strict time limits that do
not appear in the LCIA Rules. Under the SIAC procedure,
an emergency arbitrator may be appointed within one
2
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Wilmer Cutler Pickering Hale and Dorr LLP
Meeting the Challenge
business day of receipt of the application and must provide a
schedule for considering the urgent application within two
business days of the appointment. 14 There is no time limit
for the rendering of any order or award under this - or the
LCIA - procedure. This is in contrast to the new SCC
procedure, where the decision on interim measures must be
made not later than five days from the date on which the
application was referred (Article 8(1) of Appendix II).
Unlike the LCIA Rules, the arbitrator appointed under the
SIAC and SCC Rules may not then sit on the tribunal unless
otherwise agreed by the parties.
23. The LCIA Court must be persuaded of the “exceptional
urgency” of the application in order to agree to the expedited
formation of the tribunal. Under the SIAC procedure, the
Chairman must determine whether or not the application
constitutes an “emergency”. There is no such requirement
under the SCC Rules where the emergency arbitrator simply
has the same powers as the tribunal would have to grant
interim measures under Articles 32(1) to (3).
3. Controlling Evidence in International
Arbitration
24. According to the 2010 International Arbitration Survey,
disclosure of documents is the aspect of the arbitral process
that contributes the most to the length of proceedings.
Additionally, 30 percent of the respondents to the Survey
believe that the tribunal is best placed to expedite the arbitral
proceedings, whilst 19 percent believe it is the parties.
25. The IBA, in drafting the 2010 version of the IBA Rules on
the Taking of Evidence in International Arbitration (the
“2010 IBA Rules”), 15 has clearly sought to address the
sentiments expressed by those statistics. The updated 2010
IBA Rules may also be taken to address concerns expressed
by some who feel the Rules are applied either badly or not at
all. Indeed, some would say that evidentiary procedures in
international arbitration have lost all rigour and now exceed
their Court counterparts in length, cost and complexity.
26. The Preamble to the 2010 IBA Rules makes it clear that the
rules are intended to provide “an efficient, economical and
fair process for the taking of evidence in international
arbitration”. 16 Importantly, the Preamble notes that the Rules
“are not intended to limit the flexibility that is inherent in,
and an advantage of, international arbitration, and the Parties
and Arbitral Tribunals are free to adapt them to the particular
circumstances of each arbitration”. 17
27. While not their primary aim, the revised Rules do contain
some provisions relevant to the hearing. In this regard,
witnesses are required to appear for oral testimony at a
hearing only if their appearance has been requested by any
party or the tribunal (Article 8(1)). Article 8(1) also provides
for the use of videoconference or similar technology (for
example, Telepresence, where all participants appear to be
sitting around the same table) with respect to a particular
witness.
28. In terms of documentary evidence, the new rules make
provision relating to the thorny question of e-disclosure (in
Articles 3(3)(a)(ii) and Article 3(12)(b)) intended to give
greater guidance to the tribunal on how to address requests
for documents maintained in electronic form. In particular,
Article 3(12)(b) provides that documents in electronic form
“shall be submitted or produced in the form most convenient
or economical to [the party] that is reasonably usable by the
recipients”. The 2010 IBA Rules also contain much more
detailed provisions relating to privilege (Article 9(2)) which
are intended to enhance the degree of predictability and, thus,
efficiency in the arbitral process.
29. Perhaps the greatest achievement of the new Rules is the
requirement for the early involvement of the tribunal in
engaging not just with the parties but also with the issues in
dispute. Thus, Article 2 of the 2010 IBA Rules now endows
the tribunal with greater “case management” powers. It
requires the arbitral tribunal to “consult the Parties at the
earliest appropriate time in the proceedings and invite them
to consult each other with a view to agreeing on an efficient,
economical and fair process for the taking of evidence”. 18
The consultation on evidentiary matters may address matters
such as the scope, timing and manner of the taking of
evidence, including “the promotion of efficiency, economy,
and conservation of resources in connection with the taking
of evidence”. 19 The tribunal is also encouraged to identify
those issues that it considers “material to the outcome” of the
case and/or those that may be appropriate for preliminary
determination (Article 2(3)).
30. The phrase “case management” strikes fear into the heart of
many whose experience of English Court litigation in the
post-Woolf reforms world have involved endless trips to
Court in support of meaningless procedural hearings that
serve only to prolong the proceedings further. However,
most would agree that in the hands of an experienced and
pro-active tribunal, early case management is ultimately a
force for good. A tribunal that has a good grasp of the facts
and of the issues in dispute will be far better placed to
identify a legitimate, issue-based approach to disclosure and
to make robust decisions in relation to tactics that are plainly
aimed at disrupting proceedings.
31. In this regard, the IBA Rules now require that a request to
produce documents contains “a statement of the reasons why
the requesting Party assumes the Documents requested are in
the possession, custody or control of another Party”. In
addition, the failure of parties to act in “good faith” in
conducting the taking of evidence may be taken into account
by the tribunal in the allocation of costs. 20 This may go some
way in deterring frivolous requests for production and other
dilatory tactics.
4. Arbitrators’ Fees in Ad Hoc Arbitration
32. A feature unique to ad hoc arbitration is that fees are
controlled not by an institution but by the arbitrators
themselves. In cases involving experienced arbitrators, this
rarely raises a problem. However, there have been reports of
negotiations and tactics that would tend to undermine the
integrity of the arbitral process in this regard. One of the
aims of the 2010 revision to the UNCITRAL Rules was to
address this concern and to ensure transparency in the setting
of fees. This has been achieved by removing the power to
determine those fees and expenses from the arbitrators.
33. Promptly after its constitution, the tribunal is now obliged to
inform the parties as to how it proposes to determine its fees
and expenses, including any rates it intends to apply. 21
Within 15 days of receiving that proposal, any party may
refer the proposal for review to the appointing authority,
which is empowered to make any necessary adjustments that
will then be binding upon the arbitral tribunal. 22 Previously,
the appointing authority had no such power and could only
make comments to the tribunal. 23
34. Additionally, when informing the parties of the arbitrators’
fees and expenses, the tribunal is obliged to explain the
manner in which those amounts have been calculated. 24 The
parties may refer for review such calculations to the
appointing authority, which is empowered to make any
adjustments that are necessary to conform to the requirement
of reasonableness. 25 Any such adjustment will then be
binding upon the arbitral tribunal. 26 3
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Wilmer Cutler Pickering Hale and Dorr LLP
Meeting the Challenge
5. Joinder and Consolidation
35. Traditional wisdom goes that consolidation and joinder were
rare in international arbitration. This is perhaps reflected in
the general absence of specific provisions on this issue in
some of the older institutional rules.
36. In the modern world of increasingly complex disputes which
sometimes involve several parties and multiple related
contracts, that wisdom is changing. 27 Thus it is now not
uncommon for disputes to arise between the same parties but
under separate contracts containing separate arbitration
agreements or between multiple parties in relation to the
same overall project where not all parties are privy to the
same contractual relationship.
37. For example, licensing relationships very often involve one
agreement granting the licence for a product with a separate
agreement by which the licensor provides support (or
consultancy) services in relation to the product licensed
under the first agreement. In those circumstances, a
respondent to a notice for arbitration under both contracts
might refuse to agree that both disputes be resolved in the
same proceedings. Alternatively, the respondent might
respond to a claim under one contract with a separate claim
under the second contract. Either way, the motive is usually
the pursuit of some tactical advantage whose aim (or effect)
is to disrupt and prolong proceedings. Such tactics also often
result in inconsistent awards which is unsatisfactory for all
involved.
38. Many of the same situations might arise in relation to third
parties. Construction disputes provide perhaps the best
example, such as where a contractor sued by its employer
wishes to join a sub-contractor who has no contractual
relationship with the employer.
39. Either way, one way to ensure efficiency and avoid
inconsistent results is an order by the tribunal to consolidate,
or join a third party to, proceedings. Consolidation is a
power tribunals in ICC arbitration already have where claims
between the same parties all arise in relation to the same
“legal relationship” (Article 4(6)). The same is true of
tribunals sitting under the Swiss Rules (Article 4), which
allow for consolidation even where the arbitrations
concerned involve parties “that are not identical”. Under the
1976 UNCITRAL Rules, the power to consolidate
proceedings only arises on express agreement of both parties.
40. The Working Group on the 2010 revisions to the
UNCITRAL Rules debated the topic of consolidation but
declined to address it in the new rules due to concerns
regarding unfairness. 28 This is perhaps to be regretted. 29
However, the 2010 Rules do now permit the joinder of third
parties who are “privy to” the arbitration agreement (Article
17(5)); an advance on the 1976 Rules, at least, which were
silent on this point. The power to join a third party already
exists under the LCIA Rules, which perhaps provides the
broadest procedural discretion in this regard (Article
22(1)(h)). There, a tribunal may join a third party but only
where that third party and the party making the application
for joinder both agree. Statistics and anecdotal reports on the
use of this provision reveal that it is rarely used, however.
41. As noted already, the power to consolidate proceedings
already exists under the ICC Rules. Furthermore, additional
parties may be joined to proceedings under the ICC Rules
following the introduction of rules relating to the
appointment of tribunals in multi-party arbitrations (Article
10) and criticism that to allow only the Claimant to choose
the parties to the arbitration created inequality of arms for the
Respondent. As a result, the practice of the ICC Court is to
allow joinder of parties named by either the Claimant or the
Respondent, provided certain strict conditions are met. This
does not help a potential party unnamed by either of the
parties to the proceedings, however, and it remains to be seen
in precisely what terms the new edition of the ICC Rules will
address the question of joinder and consolidation.
42. Pausing to reflect on these changes just for a moment, there
is one aspect of arbitral procedure that is notably absent from
any of the 2010 rules and it is one which few could seriously
dispute as being anything other than fundamentally efficient;
the hearing itself.
43. Take a multi-party, multi-million dollar dispute involving
documents in at least two languages, many tens of witnesses
and several experts on separate fact and legal issues to the
English or US Court and you are looking at a hearing of
upwards of at least ten weeks where the Judge will typically
only sit from 10 a.m. to 4 p.m. (certainly in the English
Court). Contrast this with the same dispute resolved through
arbitration, in which the tribunal will likely sit from 9.30 a.m.
to 6 p.m. (and frequently beyond) in a hearing that will
probably last somewhere between two to three weeks. Even
the fiercest critic would have to admit that in general terms,
the arbitral hearing represents a staggering achievement in
efficiency on the part of all concerned, particularly when one
considers the quality of the awards that follow (albeit
oftentimes unforgivably late). In this light must the
efficiency of arbitration also be seen.
C. Are all these rule changes addressing the concerns
44. Hearings aside, however, all of these rule changes follow in
the wake of the eternal quest to improve efficiency and drive
down costs in international arbitration. Are they, or are they
capable of, achieving their stated aims
45. While no statistics exist, more detailed rules on consolidation
and joinder should be a welcome addition to institutional and
ad hoc rules alike. Both procedures as they stand create
problems, for example in relation to the appointment and
composition of tribunals, confidentiality and enforcement.
In addition, they may achieve greater procedural efficiency
but they do not necessarily lead to reduced costs. These and
other issues can frequently outweigh the perceived
advantages and it is to be hoped that any new rules in this
area will address these problems. 30
46. Likewise, the new IBA Rules on the Taking of Evidence
rightly seek to address the increasingly unsatisfactory way in
which document disclosure and other evidentiary matters are
conducted in international arbitration. By emphasising the
responsibilities of the parties and tribunals alike in this area,
it is to be hoped that endless rounds of Redfern Schedules
running to multiple sheets of A3 paper can be a thing of the
past.
47. More concrete evidence can be found in support of some of
the new fast-track procedures. Anecdotally, informal reports
suggest that fast-track arbitrations are on the increase,
particularly in certain types of dispute. This finds some
support in the statistics, too. The 2010 Annual Report for
SIAC shows that of the new arbitrations filed in 2010, 88
were filed after the introduction of the new Rules (i.e. after 1
July 2010). Of those 88 cases, SIAC received no less than 20
applications for the expedited procedure, of which 12
applications were accepted (8 of which were subsequently
consolidated) under Rule 5.1(a) (amount in dispute is less
than SD$5 million) and one was accepted under Rule 5.1(b)
(the parties agree). While no case has yet adopted the
procedure on the basis of the “exceptional urgency”
requirement, nonetheless, this is an encouraging start in the
first six months of the new SIAC Rules.
48. Similarly, by February 2011, three applications under SIAC
Rule 26.2 had been received and accepted by the Chairman.
Reports of those applications indicate that SIAC and the
4
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Wilmer Cutler Pickering Hale and Dorr LLP
Meeting the Challenge
emergency arbitrators appointed are succeeding in meeting
extremely tight timetables (in one case, little over a week to
render a decision).
49. The equivalent provisions under other arbitral institutions’
Rules also appear to have had a significant impact. For
example, 66 (or 27 percent) of the 215 SCC arbitrations filed
in 2009 were filed pursuant to their new Expedited Rules.
Eight of those were international arbitrations. The
summaries of four decisions rendered in 2010 under the
emergency arbitrator provisions pursuant to the SCC Rules
earlier this year also indicate that the procedure is working
well and broadly within the time limits prescribed by the
rules. In addition, in one of the four cases referred to, the
applicant party was granted the relief sought. Interestingly,
the standard applied for the consideration of all four
applications was guided not by the seat of the arbitration
(Sweden, in all four cases) but by what the SCC referred to
as the “choice of law”, which is taken to mean the law of the
underlying contract. In two cases, the “choice of law” was
Swedish law; in one, English; and in one the law of
Georgia. 31 A full discussion of these choice of law issues is
beyond the scope of this article but it will be interesting to
see how this issue is dealt with under the Rules of other
institutions that have adopted, or may in the future adopt, this
procedure.
50. Similarly, expedited arbitrations under Article 42 of the
Swiss Rules accounted for a surprisingly high 45 percent of
cases filed. This figure might reflect the fact that Article 42
applies automatically to any amount in dispute of or under
CHF 1 million (approx. US$ 1.12 million) and might
therefore suggest that a large number of claims under the
Swiss Rules are of relatively low value (although the
statistics are silent on this point). The number of expedited
cases under the JCAA Article 59 procedure, where the
qualifying amount for automatic application of the procedure
is much lower than for the Swiss Rules (J¥20,000,000 or
US$ 250,000), was 16 percent. The expedited formation of
tribunals under LCIA Rules, Article 9 has gradually risen but
with more modest numbers from 13 applications in 2009 and
20 in 2010.
51. The statistics indicate either popularity for these fast-track
procedures, irrespective of the type of or amount in dispute,
or simply the number of low-value disputes that institutions
handle (because they apply automatically where the amount
in dispute is below a certain threshold).
52. What these statistics sadly can’t reveal is whether these
procedures truly are achieving their stated aim of increasing
efficiency and reducing costs. In this regard, there are a
number of issues regarding emergency arbitrator procedures
that need to be addressed, including their interplay with
national Court procedures and questions of enforcement. 32
SIAC very recently indicated that it is currently reviewing its
rules in this regard. 33
53. In relation to fast-track arbitration, it does not necessarily
follow that a procedure which renders an award in six
months is more efficient (and less costly) than one where the
award takes two years. Furthermore, there is no guarantee
that the result is one which both parties accept and a fast
track award that is the subject of lengthy challenge and/or
enforcement proceedings is arguably as bad as one which
took two years to render at the outset.
54. In this regard, the fast-track procedure might seem to expose
awards to challenge more than awards in standard
proceedings. For example, a party might argue that it was
not afforded a full or proper opportunity to present its case
due to the truncated nature of proceedings or that the award
was insufficiently reasoned (the Swiss Rules, for example,
expressly permit reasons to be in “summary form”). The
Swiss Supreme Court has given such arguments fairly short
shrift but the case gives a worrying indication of where
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unscrupulous tactics could lead.
55. The conscious attention of all those involved in arbitration to
the issue of efficiency is key; it is not just being efficient but
also being seen to be that may count in the eyes of
arbitration’s most important critic, the user. In this regard,
rules which have as their aim the promotion of a more
streamlined and tailored arbitral process should be a positive
step. 34 The real proof of the pudding for all these rules lies,
of course, in the hands of the users themselves. It is perhaps
therefore a question for the International Arbitration Survey
to pose to in-house counsel in its next edition; to what extent
have these procedures and Rules which were designed to
address efficiency and costs achieved their aim
D. Are all these rule changes necessary
56. To the extent these new rules and procedures do not
adequately address the question of time and costs, where
does one turn in the quest for arbitral efficiency To put it
another way and to echo the recent cry of one of arbitration’s
leading counsel and arbitrators, do we really need all these
rule changes and guidelines Or do the tools we need to
combat inefficiency already exist
57. The vast majority of the major institutional rules already
require arbitrators to avoid unnecessary delay and expense so
as to provide for an efficient resolution of the dispute in
hand. Article 14.1(ii) LCIA Rules is perhaps the most
comprehensive in this regard, providing that arbitrators must
“adopt procedures suitable to the circumstances of the
arbitration, avoiding unnecessary delay or expense, so as to
provide a fair and efficient means for the final resolution of
the parties’ dispute.” 35 This broad procedural discretion
(echoed in the rules of many of the institutions, including
Article 15 of the ICC Rules) means that in general terms,
adopting mechanisms whose aim is to rationalise the arbitral
process are undoubtedly authorised.
58. There is, however, disagreement amongst practitioners on the
scope of those mechanisms. One example which has received
increasing attention amongst practitioners is the ‘summary’
disposition of claims. In April 2006, the newly amended
ICSID Rules were published and included – for the first time in
any institutional rules – the express power for a tribunal to
dismiss claims on a summary basis that are “manifestly without
legal merit” (Article 41(5)). From the cases that have
considered objections under this rule so far, 36 guidelines on its
application that are missing from the rules themselves begin to
emerge and they reveal a procedure that is broadly akin to UK
and US style summary judgment procedures.
59. A full discussion of the nature of summary disposition and its
availability in international arbitration is not only beyond the
scope of this article but has been addressed elsewhere in
some detail. It is nonetheless interesting to note that none of
the institutional rule changes introduced in 2010 followed
ICSID Rule 41(5). Indeed, the ICC’s Task Force on
Arbitrating Competition Issues specifically recommended in
their report on “Evidence, Procedure and Burden of Proof”
that the ICC Rules not be amended to allow for summary
judgment because it is “likely a summary judgment vehicle
would not work in the ICC context and culture”. 37
60. However, in an article recently published in the ICC Court
Bulletin, decisions of tribunals sitting in ICC cases reveal the
existence of, and willingness of tribunals to consider,
applications for the ‘summary disposition’ of claims (in those
cases, citing Article 15 of the ICC Rules). 38 This
demonstrates, both in relation to summary disposition but
also more generally, the ample scope of existing rules to
adopt procedures whose aim is to promote and achieve
efficiency in resolving a dispute. 39 In other words, the tools
do already exist.
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Wilmer Cutler Pickering Hale and Dorr LLP
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61. So why do complaints that arbitration is costly and
inefficient persist One might argue that practitioners and
tribunals have simply lost sight of the endless possibilities
that lie in a rule which provides for no more than the
adoption of “suitable procedures”. It is also possible that
parties sometimes overlook the importance of the quality of
the result in their focus on the speed and cost of getting there.
Another possibility is that arbitration is becoming a victim of
its own success. As the demand for arbitration grows, so too
does the need for counsel and arbitrators who may not have
the experience or judgment to know what are “suitable
procedures” for any given case without detailed rules and
guidance.
62. The truth, in the modern world of increasingly complex
disputes conducted in an environment of sustained economic
constraints, is that there probably is no satisfactory answer to
dealing with inefficiency. At least, no explanation that
satisfactorily answers all of the concerns all of the time. This
brings us full circle back to the very origin and purpose of
arbitration. The bare framework of arbitration quite possibly
provides none of the answers; but add to that framework
specific procedures - whether or not contained in rules or
guidelines - adopted and agreed by the parties, their counsel
and the tribunal and you hopefully have what arbitration
absolutely can and should be; an effective answer at one point
in time to the particular issues in the particular dispute.
Endnotes
[1] Queen Mary University of London, 2010 International
Arbitration Survey: Choices in International Arbitration
(published 6 October 2010).
[2] Survey, at p. 32. The Survey also reports that respondents
“prefer a pro-active case management style rather than a
deferential or reactive style (43% vs. 21%) and an arbitrator
that focuses on the commercial disposition rather than the
legal determination of disputes (32% vs. 24%)”. See Survey,
at p. 25.
[3] See Swanton, “In-house counsel say international arbitration
takes too long” (available at http://www.insidecounsel.com
/News/2010/5/Pages/SuperConference-Inhouse-Counsel-
Say-International-Arbitration-Takes-Too-Long.aspx). The
Corporate Counsel International Arbitration Group is an
alliance of more than 90 in-house attorneys from
multinational companies interested in improving the way
international arbitration is conducted.
[4] Report from the ICC Commission on Arbitration,
“Techniques for Controlling Time and Costs in Arbitration”,
Preface, ICC Publication 843 (2007).
[5] See SIAC 2010, CEO’s Annual Report, at p. 3 (available at:
http://www.siac.org.sg/images/stories/documents/SIAC_An
nual_Report_2010.pdf).
[6] The new rules no longer require the drafting and signing of a
Memorandum of Issues (old Rule 17), akin to the ICC Terms
of Reference.
[7] The Expedited Rules are available on the SCC website at:
http://www.sccinstitute.com/forenklade-regler-2.aspx.
[8] Of course, in reality, there are several issues which contribute
to the perception that CIETAC arbitration can be inefficient.
[9] SIAC Rules, Article 5(1)(a)-(c).
[10] SIAC Rules, Article 5(2)(b).
[11] SIAC Rules, Article 5(2)(a).
[12] SIAC Rules, Article 5(2)(d).
[13] ICDR Rules, Article 37.
[14] SIAC Rules, Schedule 1, Article 2.
[15] IBA Rules on the Taking of Evidence in International
Arbitration, adopted by a resolution of the IBA Council on
29 May 2010 (“2010 IBA Rules”).
[16] 2010 IBA Rules, Paragraph 1 of the Preamble.
[17] 2010 IBA Rules, Paragraph 2 of the Preamble.
[18] 2010 IBA Rules, Article 2(1).
[19] 2010 IBA Rules, Article 2(2)(e).
[20] 2010 IBA Rules, Article 9(7). The Preamble also emphasises
the need for parties to act in “good faith” in the taking of
evidence. See 2010 IBA Rules, Paragraph 3 of the Preamble.
[21] UNCITRAL Rules 2010, Article 41(3).
[22] UNCITRAL Rules 2010, Article 41(3).
[23] UNCITRAL Rules 1976, Article 39(4).
[24] UNCITRAL Rules 2010, Article 41(4)(a).
[25] UNCITRAL Rules 2010, Article 41(4)(b)-(c).
[26] UNCITRAL Rules 2010, Article 41(4)(c).
[27] Support for this can be found in the statistical reports of some
arbitral institutions which show that an increasing number of
arbitrations involve multiple parties.
[28] See A/CN.9/614 - Report of the Working Group on
Arbitration and Conciliation on the work of its forty-fifth
session, at paras. 79 – 80; Wirth, The current revision of the
UNCITRAL Rules, at p. 10 (available at: http://
www.homburger.ch/fileadmin/publications/UONO26O_01.p
df).
[29] It is acknowledged that consolidation in non-administered
cases may present unique issues.
[30] For a full discussion of issues relating to multi-party/multicontract
arbitrations, see Born, International Commercial
Arbitration, Chapter 17 (2009).
[31] See Lundstedt, SCC Practice: Emergency Arbitrator,
Decisions rendered 2010, available on the SCC website at:
http://www.sccinstitute.com/filearchive/3/39211/Emergency
_arbitration_slutlig.pdf.
[32] Concerns have been expressed as to whether the existence of
an emergency arbitrator provision would render a national
Court which is otherwise empowered to act in support of
arbitration incapable of issuing interim relief. See in this
regard section 44(5) of the English Arbitration Act 1996 and
section 12A(6) of the Singapore International Arbitration
Act. Elsewhere, there are doubts as to whether an order or
award rendered under the emergency arbitrator procedure
could be enforced, for example because the emergency
arbitrator is not a “tribunal” (within the meaning of section
12(6) of the Singapore International Arbitration Act).
[33] At the recent SIAF 2011 event in Singapore, the Chairman of
SIAC indicated that a review of the emergency arbitrator
procedure and the Singapore International Arbitration Act
may be necessary to address issues relating to enforcement.
[34] See Born, International Commercial Arbitration, at p. 1972
(2009) (noting that rules allowing for expedited provisional
measures “appear to be sensible steps towards improving the
arbitral process”).
[35] See also SCC Rules, Article 20(3), WIPO Rules, Article
38(c) and AAA Rules, Article 16(2).
[36] Trans-Global Petroleum, Inc. v. The Hashemite Kingdom of
Jordan ICSID Case No. ARB/07/25, Decision on the
Respondent’s Objection Under Rule 41(5) of the ICSID
Arbitration Rules dated 12 May 2008 (“Trans-Global”);
Partners. LP v Bolivarian Republic of Venezuela (ICSID
Case No. ARB/08/3), Decision on the Respondent’s
Objection under Rule 41(5) of the ICSID Arbitration Rules
(2 February 2009) (“Brandes”); Global Trading Resource
Corp. and Global International, Inc. v Ukraine (ICSID Case
No. ARB/09/11), Decision on the Respondent’s Objection
under Rule 41(5) of the ICSID Arbitration Rules (1
6
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Wilmer Cutler Pickering Hale and Dorr LLP
Meeting the Challenge
December 2010) (“Global Trading”); Grynberg, Grynberg,
Grynberg, and RSM Production Corporation v Grenada
(ICSID Case No. ARB/10/6), Decision on the Respondent’s
Objection under Rule 41(5) of the ICSID Arbitration Rules
(10 December 2010) (“RSM Production”).
[37] Judith Gill, Applications for the Early Disposition of Claims
in Arbitration Proceedings in Albert Jan van den Berg (ed),
50 Years of the New York Convention: ICCA International
Arbitration Conference, ICCA Congress Series, 2009 Dublin
Volume 14 at p. 525 (Kluwer Law International 2009).
[38] See Born & Beale, Party Autonomy and Default Rules:
Reframing the Debate over Summary Disposition in
International Arbitration, ICC International Court of
Arbitration Bulletin Vol. 21 No. 2, at p. 19 (2010).
[39] As a leading practitioner has noted in this regard: “There
does not seem to be a strong call for arbitration rules
generally to adopt powers similar to those of national courts
enabling summary disposition of issues or claims. It is
perhaps more a question of the existing powers being fully
utilised in appropriate cases so as to bring about the
expedited resolution of issues or claims ….” See Judith Gill,
Applications for the Early Disposition of Claims in
Arbitration Proceedings in Albert Jan van den Berg (ed), 50
Years of the New York Convention: ICCA International
Arbitration Conference, ICCA Congress Series, 2009 Dublin
Volume 14 at p. 525 (Kluwer Law International 2009).
Kate Davies
Wilmer Cutler Pickering Hale and Dorr LLP
49 Park Lane
London W1K 1PS
United Kingdom
Tel: +44 20 7872 1089
Fax: +44 20 7839 3537
Email: kate.davies@wilmerhale.com
URL: www.wilmerhale.com
Kate Davies is a counsel in the firm’s Litigation/Controversy
Department, and a member of the International Arbitration
Practice Group. She joined the firm in 2006. Ms. Davies’ practice
focuses on international arbitration.
Practice
Ms. Davies’ international arbitration practice includes
representation in ICC, LCIA, VIAC, PCA and UNCITRAL
arbitrations sited in both common and civil law jurisdictions
(London, Singapore, Vienna, Paris, Zurich, The Hague, Warsaw).
Ms. Davies’ private international law practice covers a wide range
of industries, including in particular the energy, oil and gas,
construction, telecommunications and technology sectors. Her
practice also includes representation in public international law
arbitrations (including most recently in the Abyei Arbitration). She
has also been involved in financial and regulatory investigations
and has represented clients in a number of proceedings before
both the English High Court and Court of Appeal.
Ms. Davies joined WilmerHale from the International Arbitration
department of another major US law firm in London. She has
practised as an English solicitor in London since 2004.
Professional Activities
Ms. Davies is Co-Chair of the Young International Arbitrators
Group of the LCIA, and a member of the ICDR, the International
Bar Association, Arbitral Women and the Law Society of England
and Wales.
Education
PgDL and LPC, College of Law, London, 2002.
BA, Dutch and French, Double Hons., University College London,
2000.
Bar Admissions
England and Wales.
Languages
Dutch and French.
Wilmer Cutler Pickering Hale and Dorr LLP is an international law firm with offices in London, Beijing, Berlin, Boston, Brussels,
Frankfurt, Los Angeles, New York, Oxford, Palo Alto, Waltham and Washington, D.C. The firm offers one of the world’s premier
international arbitration and dispute resolution practices, covering virtually all forms of international arbitration and dispute
resolution. The firm is experienced in handling disputes administered under a wide variety of institutional rules, including the ICC,
AAA, LCIA, UNCITRAL, and ICSID rules. The firm also has extensive experience with more specialised forms of institutional
arbitration and ad hoc arbitrations. Wilmer Cutler Pickering Hale and Dorr’s lawyers have been involved in arbitrations sited across
the world, and the group has handled disputes governed by the laws of more than 30 different legal systems. Our international
arbitration group has been involved in more than 500 proceedings in recent years and we have successfully represented clients
in four of the largest, most complex arbitrations in the history of the ICC and several of the most significant ad hoc arbitrations to
arise in the past decade.
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